Tax Treaty Case Law around the Globe 2018
1. Aufl. 2019
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S. 163Chapter 16 Austria: The Economic Employer Concept
Christoph Marchgraber
16.1. Introduction
Article 15(1) of the Austria-Germany Income and Capital Tax Treaty (2000) (hereinafter Austria-Germany double tax convention, DTC) follows the general rule of the OECD Model. Thus, income “derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State”. However, according to article 15(2) of the Austria-Germany DTC, this place-of-work principle does not apply if
the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the calendar year concerned, and
the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
If the requirements of this so-called 183-day rule are fulfilled, the employment income is taxable only in the employee’s residence state, irrespective of the fac...